Taking the Bull by the Horns: Congress and International Humanitarian Law

Article excerpt

Abstract:

In the author's view, Congress has clear authority to review the actions of government lawyers in the area of International Humanitarian Law. While Congress has done more than is generally recognized on issues related to individuals detained by the United States since September 2001, obstacles prevented it from addressing these issues seriously until the summer of 2005. Questions have been raised about the actions it has taken in the second half of 2005, and gaps still remain on inquiries into the origins of detainee abuses. In this regard, lawyers and policymakers in the legislative branch face constraints which may be similar to those in the executive branch but can often run deeper: deference to the commander-in-chief, unified political control of government, shortage of expertise, and political dynamics. Yet the legislative actions taken by the end of 2005 demonstrate that determined lawmakers can overcome these obstacles and assert Congress' role in addressing these complex issues.

I. INTRODUCTION

First, I would like to thank George Washington University and the organizers of this conference, Dean Karamanian and Professor Murphy, for inviting me to participate on this panel. We on Capitol Hill sometimes find it hard to find our way out of the political swamp to enjoy other arenas, but today's events are of special interest to me. I have been fortunate in my career to have had extraordinary mentors and colleagues who have pointed the way towards what it means to be an able and ethical practitioner of the law. When I was a student, Bill Bishop, who some of you knew, introduced me to the nuances of international law. As a clerk, Chief Judge Philip Pratt of the Eastern District of Michigan first showed me how to apply the rigors of legal analysis to the human condition. And as a young government lawyer, Ed Cummings showed me how to respect making decisions in the right way without losing sight of the just outcome. As with so many of us, it is not only that we respect Ed's superlative legal skills and his occasionally unconventional approaches, but it is his personal warmth and his true concern for us as human beings that endears him to me.

I will be focusing my comments today on the role of Congress in relation to two topics that have already been widely discussed earlier today and by the rest of this panel - the detention of enemy combatants and their treatment during such detention. As all of us recognize, the U.S. approach to these issues is not simply an academic debate of arcane legal doctrines. Nor do the legal policies we are discussing simply implicate questions of reciprocity by our enemies towards our own troops, as important as that consideration is. In my judgment, these issues and the abuses we have observed have a critical impact on the United States' ability to project its national power by undermining what Joseph Nye has called our "soft power"1 and what Walter Russell Mead has further subcategorized as our "sweet power,"2 damaging our ability both to attract allies and dismay our adversaries. As I will discuss below, these events have profound consequences for our nation, and these considerations are in turn driving an ongoing debate on individuals detained by the U.S. government.

Today I would like to look first at the constitutional role of Congress in reviewing executive branch conduct in the area of international humanitarian law. I will then examine what Congress has done in this area and discuss the motivations of those who have taken on some of these issues. I will conclude by discussing the constraints that have prevented Congress from doing more. In brief, I believe that Congress has clear authority to oversee and take legislative action relating to decisions made by government lawyers in the area of international humanitarian law. In my view, Congress has done more than is generally recognized, but has only recently treated these issues in a serious fashion. …